Weakening a Critical Backstop Protection for Public Health, Clean Rivers

A scarcely used, yet critical provision of the Clean Water Act provides the Environmental Protection Agency (EPA) with the ability to stop the most devastating projects that would have unacceptable adverse impacts to our drinking water supplies, shellfish and fishery areas, recreational areas, or wildlife. This provision, known as the “404 veto authority,” has only been used thirteen times in the 42 year history of the Act since its enactment in 1972. Right now, legislation in the House and Senate (H.R. 524, S. 830) threaten to dramatically weaken the EPA’s veto authority.

What is EPA’s “404 veto authority”?

At the most basic level, the Clean Water Act works by effectively limiting the amount of pollution that gets discharged into our waters every day. Permits are required if a polluter wants to discharge a pollutant from a specific source (such as a pipe) into a water of the United States. The Clean Water Act establishes a separate type of permit authorized by the Army Corps of Engineers (Army Corps) for the discharge of “dredged or fill material” [PDF] under Section 404. This refers to the discharge of materials that are dredged, rocks, sand, mining debris, or other materials that replace a water body with dry land or change the bottom elevation of that water body. In other words, filling in a wetland or stream would require a 404 permit.

Every year, the Army Corps of Engineers processes approximately 60,000 permit actions [PDF] under the Clean Water Act’s Section 404. Under Section 404(c) of the Clean Water Act, the EPA has the ability to review potential adverse impacts in a public process and to make a determination about whether the proposed activity would result in an “unacceptable adverse effect” on drinking water, shellfish and fishery areas, wildlife, or recreational areas. If the EPA finds that there would be an unacceptable adverse impact, the Agency has the authority to deny, restrict, or withdraw authorization for a project.

To put this into perspective, the EPA has used this “veto authority” for a 404 permit thirteen times since 1972. In half of this time between 1988 and 2010, the Army Corps processed an estimated 1.3 million permit actions.

Why is this veto authority important to protect our rivers?

Although it is rarely used, the EPA’s veto authority is critically important. It is one of the last backstops to prevent the most devastating projects from moving forward.

The Yazoo Pumps project [PDF] would have drained and significantly degraded 67,000 acres of critical wetlands in northwestern Mississippi that store floodwaters and provide critical habitat for fish and wildlife. With a price tag of $220 million in federal tax dollars, the project would have had catastrophic impacts [PDF] to wetlands, fish, and wildlife in the rich Mississippi delta between the Yazoo and Mississippi Rivers. In 2008, the EPA exercised its veto authority to block the project because of its unacceptable adverse impact on at least 67,000 acres of wetlands in the area.

In West Virginia, one of the largest proposed mountaintop removal mining operations, the Spruce Mine, would bury more than 7 miles of streams [PDF] with 110 million cubic yards of mining waste and debris. The Army Corps issued the permit in 2007 to allow the mining company to discharge mining waste into local streams. Several years later, the EPA released their determination that the project would cause unacceptable adverse impacts, using its veto authority to withdraw the permit. The debate in the courts over this case has been ongoing and in 2013, the U.S. Court of Appeals for the D.C. Circuit reaffirmed the EPA’s legal power to veto a permit that had been issued by the Army Corps.

In 2011, American Rivers listed the rivers of Bristol Bay, the Kvichack and Nushagak Rivers and their tributaries on our America’s Most Endangered Rivers® list. These rivers support one of the few remaining wild salmon fisheries in the world, home to over half of the world’s sockeye salmon. In addition to a $350 million commercial salmon fishery, the rivers of Bristol Bay support subsistence and recreational fishing. More than 15,000 anglers visit the region every year. A consortium of mining companies proposed one of the world’s largest open-pit mines, known as the Pebble Mine, in the headwaters of the Bristol Bay rivers. As a result, the EPA decided in February 2014 to initiate a public process to review the potential adverse impacts of mining in this area under Section 404(c) and determine whether there would be unacceptable adverse impacts.

Our America’s Most Endangered Rivers® list of 2014 includes a clear example of why the EPA’s veto authority should be retained. The U.S. Army Corps of Engineers is proposing to cut off the last connection between the Mississippi River and its natural backwater habitat in the State of Missouri by constructing a new 1,500 foot levee across the gap at the bottom of the New Madrid Floodway. This levee would prevent water from reaching 75,000 acres of floodplain habitat, eliminating the most important spawning and rearing habitat for fish in the middle Mississippi River and destroying habitat that is essential for an array of birds, waterfowl, and mammals. U.S. Environmental Protection Agency has said the project “will cause the greatest loss of wetlands functions in EPA Region 7’s history.” Despite the threat this project poses to the environment, the Corps may continue to push this project forward. If they do, an EPA Clean Water Act veto may be necessary to stop it once and for all.

H.R. 524 and S. 830 – Weakening Protections for Public Health, Rivers

H.R. 524 introduced by Representative McKinley (R-WV) and S. 830 introduced by Senator Manchin (D-WV) would significantly weaken the EPA’s 404 veto authority by preventing its use after the Army Corps has approved a permit for the project. In other words, if these bills become law, as soon as a permit is approved by the Army Corps, the EPA would lose its ability to veto or restrict even the most damaging projects to our drinking water supplies or the rivers and streams where we fish, swim, and boat.

Both bills would significantly weaken EPA’s authority, which is a critical backstop to protect public health and the health of our rivers. American Rivers continues to work to protect this critical authority and to prevent efforts to undermine the Clean Water Act.

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